“The Subject Was Muddy and Wet”: The Illegality of Zero Tolerance

By: Monica Ahmad-Yee, Esq.

The Form I-213 Record of Deportable/Inadmissible Alien, created by officials of U.S. Customs and Border Protection after they detain migrants, can be among the less boring of bureaucratic forms. Although some officers complete the form tersely, others catalog remarkably broad ranges of physical dishevelment and disarray in the people caught crossing the Southern border. Signs of the long, dangerous journey just undertaken are in the descriptions of mud, sagging, and gashes, on both clothes and skin. One memorable I-213 that I saw several years ago stated dejectedly, “the subject was muddy and wet.” Much more recently, I came across an I-213 regarding a child traveling as part of a group: “the subjects were wearing dirty, torn, and tattered clothing which is consistent with a person that has crossed the Rio Grande River.” The disorder is a reminder of a grasping, struggling, messy attempt with no guarantee of successful entry, or even survival, by the end.

The creation of the Justice Department’s “zero tolerance” immigration policy—which focuses on prosecuting all adults who enter the U.S. illegally – has also proven a grasping, struggling, messy attempt, but without any of the redemptive and sympathetic characteristics of people who flee violent death and grinding poverty. Amid colossal uproars about family separation and detention, immigration court backlogs, and the moral imperative of basic human compassion, the Justice Department in recent months has struggled to understand and redefine the contours of its own policy. The administration’s failures on zero tolerance, however, are not surprising considering the treatment that unlawful entry receives under basic U.S. immigration law provisions.

One unlawful entry, in and of itself, bars no one from a grant of asylum. Certain victims of human trafficking can likewise apply for a T visa despite unlawful entry. A grant of a U visa—relief for victims of certain categories of crimes committed in the U.S.—is similarly not predicated on arrival by legal means. The same applies to seekers of Special Immigrant Juvenile Status, as well as applicants under the Violence Against Women Act who are victims of extreme cruelty at the hands of U.S. citizen or lawful permanent resident spouses. All of these forms of relief are paths to lawful permanent resident status and U.S. citizenship.

Then there are the family-based immigration benefits, also providing a path to permanent residency and citizenship. Beneficiaries of family-based petitions, for example spouses of U.S. citizens and parents of U.S. citizens over the age of twenty-one, can apply for lawful permanent resident status despite entry via illegal means. To be sure, there is a need to cure unlawful presence in the U.S. A provisional waiver application can be one method of doing this, by showing extreme hardship to a lawful permanent resident or U.S. citizen spouse or parent of the applicant. Alternatively, unlawful entry and unlawful presence will not be prohibitive in certain cases in which the beneficiary of the family-based petition was also the beneficiary of an immigrant visa petition or application for labor certification that was properly filed on or before April 30, 2001.

The list of possible relief goes on to include certain parolees and applicants for cancellation of removal. Even a first-time federal misdemeanor charge for unlawful entry, pursuant to the zero tolerance policy, does not preclude migrants from seeking asylum, withholding of removal, or protection under the U.N. Convention Against Torture. This is by no means an exhaustive compilation of the rights to relief despite unlawful entry.

Nor is this an exhaustive compilation of the complications embedded in the application process. There is no guarantee of success by mere virtue of application. Discretionary components of the decision process add uncertainty and stress for applicants. To ignore or minimize the idiosyncrasies and difficulties of application and adjudication would be a disservice to migrants and their advocates. For example, multiple unlawful entries, as well as orders of removal or deportation, can render migrants ineligible for relief. This is also not to say that U.S. immigration law has struck the perfect balance of inclusion through the rights it currently affords—there are still many people who are arguably deserving of lawful status in the U.S. and still find themselves prima facieineligible to apply under current law. The details of each individual case should be reviewed by an attorney. However, the very fact that the opportunities above exist shows that U.S. immigration law has no place for zero tolerance, and that there is even room for growth to include additional groups of migrants.

With regard to asylum applicants, irregularities in manner of entry can actually strengthen a claim. The Ninth Circuit Court of Appeals held in Mamouzian v. Ashcroft that “when a petitioner who fears deportation to his country of origin uses false documentation or makes false statements in order to gain entry to a safe haven, that deception ‘does not detract from but supports his claim of fear of persecution. [ . . . ] “Accordingly, it would be anomalous for an asylum seeker’s means of entry to render her ineligible for a favorable exercise of discretion.”

Author Aristide Zolberg summarizes U.S. immigration policy as an “elusive quest” for cohesiveness in which “the government has tried to establish a ‘front door’ policy for legal immigration but has tolerated a ‘back door’ policy for unauthorized entry to meet demand for low-wage workers, as well as a ‘side door’ policy to admit refugees.” According to Philip Kretsedemas, “the implicit message being sent by these policy decisions is that immigration may not be desirable but it is most certainly necessary.” The difficult policy decisions built into current immigration law combine the reluctance of some lawmakers and the wholehearted espousal of others.

At proceedings of the Senate on June 20, 2018, the day President Trump signed the executive order halting family separations at the border, Massachusetts Senator Ed Markey stated, “Zero tolerance really means zero refuge. Zero tolerance really means zero discretion. Zero tolerance really means zero humanity. [ . . . ] We do not criminalize asylum seekers. We welcome immigrants for their contributions. We seek immigrants for their talents. We proudly remember our own families who came across a border, whether land or water, knowing this country meant a new start.”


Suggested citation: Monica Ahmad-Yee, “The Subject Was Muddy and Wet”: The Illegality of Zero ToleranceCornell J.L. & Pub. Pol’y, The Issue Spotter, (Sept. 17, 2018), http://jlpp.org/blogzine/the-subject-was-muddy-and-wet-the-illegality-of-zero-tolerance/.